An update as the Italian Government gradually lifts the Covid-19 containment measures

Although a deliberation of the Council of Ministers recently extended the statutory state of emergency until 31 July 2021, over the past two months, the Italian Government has been gradually lifting the containment measures. Indeed, data seems to confirm a comforting trend, with less than 1,000 new Covid-19 cases and well below 100 deceased per day, and with 30% of the population over 12 years old that has completed the vaccination cycle. The entire country, with the exception of the region Valle d'Aosta, is placed in a 'low risk' tier. Perhaps, as Mr Draghi stated during his press conference in mid-April 2021, Italy may start looking at the future with cautious optimism.

Statutory Decree Number 52/2021 laid out a general 'roadmap' for the containment measures’ gradual lifting. The strategy is similar to the one adopted by Boris Johnson and detailed in this blog by Jeff King. As the Statutory Decree’s Preamble reads, the Government wanted to set specific deadlines for the end of the emergency, to allow the most affected social and economic activities to resume gradually. Statutory Decree Number 65/2021 confirmed this approach. It further modified the four-tier regulation system parameters (see Part IV.A of the Oxford Compendium Country Report for Italy). The provisions contained in the two statutory decrees regulate: (i) people’s movement in the country and between the regions, including different curfew systems, (ii) schools and universities, (iii) economic and social activities, and (iv) the Covid-19 green certificate.

i. Crossing regional borders and national lockdown

Under Statutory Decree Number 52/2021, people can travel between regions that belong to the same tier without justification (see Part IV.A of the Oxford Compendium Country Report for Italy). People are allowed to travel to/from 'red' or 'orange' zones in four cases: if they have work or health-related reasons; if there is a demonstrated state of necessity; if someone is returning to their place of residency or domicile; if they have a Covid-19 green certificate (see below).
The curfew was removed for regions placed in 'white' zones. In the rest of the country, and until 6 June 2021, the curfew was set between 11 pm and 5 am. Since 7 June 2021, curfew in 'yellow' zones was between 12 pm and 5 am. From 21 June 2021, the curfew was removed in 'yellow' zones too. However, the Ministry for Healthcare can still set different time limits in cases of necessity.

The Technical and Scientific Committee (see Part II.D.28 of the Oxford Compendium Country Report for Italy) recently issued a recommendation stating that, following the latest data on the contagion rate and on the vaccination campaign, from 28 June 2021 face masks will no longer be mandatory outdoors. The Minister for Healthcare, Roberto Speranza, confirmed that the Government will back up this position with a Facebook post. The lift will apply to regions in 'white' zones only, and face masks will still be mandatory indoors (including on public transport) as well as in outdoor gatherings. Social distancing measures will still be applicable.

ii. Back to school!

From 26 April 2021 and until the end of the academic year (in early June), students in nursery, primary, and middle schools could attend classes in person. High schools had to guarantee that at least 50% of the students could attend classes physically, thus integrating in-person lessons with online teaching. Statutory Decree Number 52/2021 stated that regions and mayors could not derogate from these provisions, thus clarifying and limiting their scope of action. Nonetheless, before a virus outbreak in the school or the risk that the virus could spread, exceptional measures were possible, provided they complied with the principles of proportionality and suitability. For universities, classes resumed physically, complying with the given guidelines.

iii. Economic and social activities

Activities ranging from restaurants to theatres and sports and music events were most affected throughout the pandemic. Starting from 26 April 2021, their activity gradually started to pick up again. This was the case in the hospitality business, as restaurants in 'yellow' and 'white' zones could resume welcoming clients in their premises if the tables were placed outdoors and with only a maximum of four people per table. The latter limit expired on 1 June 2021, and clients are now allowed to sit indoors too. The Government is currently working on a new statutory decree which should allow six people per table indoors, without limit for outdoor seating.

Movie theatres and theatres opened their doors again. However, they may only host a limited number of spectators, guaranteeing proper distancing and safety measures. The same applies to outdoor sports events and gyms. Finally, from 15 June 2021, people are able to host wedding parties in compliance with the given protocol, and guests have to possess a green certificate.

iv. the Covid-19 green certificate…

The green certificate is one of the most innovative elements provided by Statutory Decree Number 52/2021, further confirmed by Statutory Decree Number 65/2021. Following the latter acts, the Covid-19 green certificate (which can be either digital or a hard copy) is released in three cases: (i) the person received the first vaccination doses. In this case, the certificate is valid after the 15th day from the jab and until the vaccination cycle is complete. After that date, the certificate is valid for nine months. Furthermore, the competent health facility is required to insert the certificate in the patient’s electronic health record; (ii) the person recovered from infection. In this case, the certificate released from the competent health facility is valid for six months; (iii) the person undertakes a PCR or rapid test, and the result is negative. In this case, the certificate is released from the competent structure and is valid for 48 hours.

The underlying principle enshrined in Article 9[8] of Statutory Decree Number 52/2021 is the European Union (EU) principle of mutual recognition. The provision asserts that the green certificates released in another EU Member States are recognised as equivalent to the ones released in Italy. Certificates released in third countries will be treated as equivalent if the EU recognises the vaccination. In any case, the provisions will be applicable until the EU Digital Covid Certificate becomes valid on 1 July 2021.

v. …and the concerns regarding privacy

The Italian Data Protection Authority has raised doubts about the lawfulness of the said regulation. In a decision of 23 April 2021, it has pointed out as many as six issues. The first is the omission by the Government to consult the Authority. The second, the most serious, is the absence of legal grounds. The Authority claims that a statutory decree is not adequate to curb the privacy rights constitutionally guaranteed. A proper statute would be necessary.

Moreover, the Authority complains that the statutory decree did not sufficiently clarify the specific objectives pursued by the introduction of green certificates. The other four complaints concern the conflict with many principles applicable to this area of law: data minimizing, exactness, transparency, and storage limitation/integrity. Under the first, the certificate would require more data than strictly necessary. Moreover, such data would not be precisely discernible. The decree would violate the principle of transparency by omitting to enable specific authorities or persons to manage relevant information and assess the authenticity and correctness of green certificates. Finally, the decree failed to set a time limit for storing data provided in the certificates.

These appear to be serious enough allegations. However, the Data Protection Authority has consultative powers only with regards to Government action, and the latter ignored such concerns. Whether this regulation will be challenged in court and reviewed by the Constitutional Court remains to be seen. It is fitting to note that the complaint regarding the lack of legal grounds recalls a recent judgment by the Constitutional Court (Number 20 of 21 February 2019), that stroke down as disproportionate legislation the mandatory publication of all public servants’ payrolls.